PEOPLE v. NORMAN (2009)

Defendant appeals from a judgment convicting him upon his plea of guilty of, inter alia, criminal possession of a weapon in the second degree (Penal Law § 265.03 [former (2) ] ) and criminal possession of a weapon in the third degree (§ 265.02 [former (4) ] ). Defendant contends that his arrest was not based upon probable cause and that County Court therefore erred in refusing to suppress physical evidence seized as a result of that arrest. We reject that contention. Where hearsay information forms at least in part the basis for probable cause, the information must satisfy “ ‘the two-part Aguilar-Spinelli test requiring a showing that the informant is reliable and has a basis of knowledge for the information imparted’ “ (People v. Flowers, 59 A.D.3d 1141, 1142, 873 N.Y.S.2d 413; see People v. Rios, 11 A.D.3d 641, 642, 782 N.Y.S.2d 863, lv denied 4 N.Y.3d 747, 790 N.Y.S.2d 660, 824 N.E.2d 61). Here, the statements of the unnamed informant, together with the police officer's personal observations of defendant, provided the officer with probable cause to arrest defendant. According to the evidence presented at the suppression hearing, the officer observed a green van pursuing two men on a moped, which was being driven at 2:00 a.m. without its headlight on. The officer pursued both the van and the moped and located them on a nearby street, whereupon he heard a gunshot. The moped was driven toward and around the officer without stopping, and the driver of the van then approached the officer and informed him that the men on the moped had fired a gun at him. The officer pursued the moped until it struck a curb. Defendant, the passenger, fell off the moped and fled on foot.

The People established the reliability of the unnamed informant, i.e., the driver of the van, by establishing that his information “ ‘was received in a direct face-to-face encounter in which [the officer was] able to observe [his] facial expressions and emotional state’ “ (Rios, 11 A.D.3d at 642, 782 N.Y.S.2d 863). In addition, the officer's own observations of defendant, including his flight upon being pursued by the officer, further established the reliability of the informant (see generally People v. Lee, 258 A.D.2d 352, 687 N.Y.S.2d 312, lv denied 93 N.Y.2d 900, 689 N.Y.S.2d 712, 711 N.E.2d 988; People v. Spearman, 226 A.D.2d 180, 640 N.Y.S.2d 532, lv denied 88 N.Y.2d 886, 645 N.Y.S.2d 460, 668 N.E.2d 431; People v. Sloan, 178 A.D.2d 624, 578 N.Y.S.2d 850, lv denied 79 N.Y.2d 953, 583 N.Y.S.2d 207, 592 N.E.2d 815). Contrary to the further contention of defendant, the recovery of the gun discarded during his flight was lawful inasmuch as the officer's pursuit and detention of defendant were lawful (see People v. Leung, 68 N.Y.2d 734, 736, 506 N.Y.S.2d 320, 497 N.E.2d 687; Sloan, 178 A.D.2d 624, 578 N.Y.S.2d 850).

As the People correctly concede, however, the court erred in imposing a five-year period of postrelease supervision for criminal possession of a weapon in the third degree, a class D violent felony offense (see Penal Law § 70.02 [1] [former (c) ]; § 70.45 [former (2) ] ). We therefore modify the judgment by reducing the period of postrelease supervision imposed for that offense to a period of three years, the maximum allowed (see People v. Childres, 60 A.D.3d 1278, 1279, 875 N.Y.S.2d 662, lv denied 12 N.Y.3d 913, 884 N.Y.S.2d 694, 912 N.E.2d 1075; People v. Brown, 52 A.D.3d 1237, 859 N.Y.S.2d 548, lv denied 10 N.Y.3d 956, 863 N.Y.S.2d 140, 893 N.E.2d 446). The sentence as modified is not unduly harsh or severe.

It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by reducing the period of postrelease supervision imposed for criminal possession of a weapon in the third degree to a period of three years and as modified the judgment is affirmed.

MEMORANDUM: